WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary then Finance.
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new section, designated
§29-22B-1108a, relating to creating a preference for certain limited video
lottery current permit holders in bid process.
Be it enacted by the
Legislature of West Virginia:
That the Code of West
Virginia, 1931, as amended, be amended by adding thereto a new section,
designated §29-22B-1108a,
to read as follows:
ARTICLE 22B. LIMITED VIDEO LOTTERY.
§29-22B-1108a. Additional preference for current permit
holders during sealed competitive bids; operation of terminals pending
contractual dispute.
(a) For the purposes of this section, the following terms are
defined as follows:
(1) "Contract" means a contractual agreement for an
operator to lease video lottery terminals to a limited video lottery retailer
that is on file with the commission at the time of a sealed competitive bid
under this article.
(2) "Contracted retailer" means a retailer who is
under contract with an operator.
(3) "Current permit holder" means a person who is a
permittee, as defined in section three hundred twenty-four of this article, at
the time of a sealed competitive bid under this article.
(4) "Location" means the physical address in which
an operator's leased video lottery terminals
are placed, pursuant to the terms of a contract with a contracted retailer and
consistent with the definition contained in section three hundred fifteen of
this article.
(5) "New entrant" means a person who is not an
operator or retailer at the time of a sealed competitive bid under section one
thousand one hundred six of this article.
(6) "Operator" means a person who is licensed as an
operator, as defined in section three hundred twenty-one of this article, at
the time of a sealed competitive bid under section one thousand one hundred six
of this article.
(7) "Permit" means the authorization, as defined in
section three hundred twenty-three of this article, to own or lease a specified
number of video lottery terminals.
(8) "Retailer" means a person who is licensed as a
limited video lottery retailer, as defined in section three hundred sixteen of
this article, at the time of a sealed competitive bid under section one
thousand one hundred six of this article.
(b) Notwithstanding any other provision of this article, a
current permit holder shall be awarded a permit that would otherwise be awarded
to a new entrant as a result of a sealed competitive bid under this article,
when the current permit holder exercises the option under this section. In order to do so, the current permit holder
must match the bid price submitted by the new entrant, and pay an additional
ten percent of that bid price, except that if the bid price submitted by the
new entrant is less than the average of all bids submitted during that
particular round of bidding, the current permit holder must pay the average bid
price submitted during that round of bidding plus ten percent. If more than one current permit holder wishes
to exercise the option under this section with respect to a particular bid of
new entrant, the right to determine which current permit holder may do so shall
be chosen by lot.
(c) In order to be awarded a permit in lieu of a new entrant
under this section, a current permit holder must:
(1) Have bid at least the minimum bid in the sealed
competitive bid in which the new entrant participated;
(2) Inform the commission in writing within five business
days of receipt of official notice of the bids received that the operator
wishes to be awarded the permit or permits that would otherwise be awarded a
new entrant; and
(3) Make full payment to the commission of the amount
required under subsection (b) of this section, within thirty calendar days of
receipt of the official notice of the bid received. Payment shall be made in a manner and form
prescribed by the commission.
(d) If a current permit holder does not act to be awarded a
permit under this section that would otherwise be awarded to a new entrant,
either by choice, by failure to notify the commission, or by failure to pay in
full, then the new entrant shall be awarded the permit.
(e) When a current permit holder exercises the option under
this section to be awarded a permit that would otherwise be awarded to a new
entrant, the commission shall refund the new entrant's bid bond in an amount reflecting the permit or permits
awarded to the current permit holder that would otherwise have been awarded to
the new entrant.
(f) A contracted retailer awarded a permit as a result of a
sealed competitive bid may not use the permit to place a terminal in a location
in violation of the contract with an operator.
When the commission determines that a contracted retailer and operator
both win permits during the sealed bid and both wish to enable his or her own
terminals in the contracted retailer's location, and there
is a dispute over the validity of the contract, the commission shall continue
to enable the operator's terminals until the operator
releases the retailer from the filed contract and presents written evidence of
the release to the commission, or a court of law issues an order requiring the
commission to allow the retailer to place his or her own terminals in the
location, or determines that the contract is invalid. Because permits are not location specific, a
retailer in such circumstances may submit a written petition to the commission
requesting that the ninety-day requirement in section one thousand one hundred
thirteen of this article shall be held in abeyance until such time as a court
of law makes a final determination on the validity of the contract.
(g) The commission may propose emergency and legislative
rules for legislative approval in accordance with the provisions of article
three, chapter twenty-nine-a of this code as necessary to fulfill the
requirements of this section.
(h) The preference in this section is in addition to any
other preference afforded in this article.
NOTE: The purpose of this bill is to provide an
additional preference to a limited video lottery current permit holder in the
rebid process. A current permit holder may obtain a permit in lieu of a new
entrant by paying the amount bid by a new entrant plus 10 percent, or the
average bid plus 10 percent, whichever is greater. A current retailer may
obtain a permit by competitive bid and is not subject to the right to match by
a current permit holder, but the retailer may not use a permit to place
terminals in violation of a contract with an operator. In the event of a
dispute between an operator and retailer over the validity of a contract, the
operator's terminals shall remain
operational until the operator and retailer agree otherwise or the contract is
voided by a court of law, but a retailer may request a stay from the Lottery
Commission of the usual 90-day requirement for placement of terminals pending
the outcome of the dispute.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.